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Environmental Law

: ESA Blawg

Regulation of lands under Clean Water Act did not trigger special Endangered Species Act protections for listed plant

By Keith Rizzardi

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Northern California River Watch v. Wilcox, 2008 U.S. Dist. LEXIS 17441, No. C 06-06685 CRB (N.D.Cal. Mar. 6, 2008)

BACKGROUND: This case involved the Sebastopol meadowfoam, a plant. With respect to plants, the Endangered Species Act, Section 9 makes it is unlawful to “remove and reduce to possession any such species from areas under Federal jurisdiction... in knowing violation of any law or regulation of any State” In addition, the California Endangered Species Act prohibits taking of endangered plant species; however, "an employee or agent of the department may, in the enforcement of this chapter, . . . confiscate plants or parts thereof when unlawfully taken, transported, possessed, sold, or otherwise . . . ." Cal. Fish & Game Code § 1910.

Photo from USFWS

SUMMARY: In this case, California land managers and law enforcement officers discovered the meadowfoam on a 21-acre site in Sebastopol, CA, and relocated the plants because they believed it had been placed there. To begin with, as a legal matter, Judge Charles Breyer rejected the Plaintiffs expansive reading of the ESA:

"the ESA provides greater protections for fish and wildlife than for plants. Yet, under plaintiffs' interpretation of "areas under Federal jurisdiction," plants found on private property that is regulated by the federal government under a federal law, such as the Clean Water Act, are entitled to more protections than fish and wildlife found on the same property... To accept plaintiffs' interpretation would mean that the removal of endangered plants on private property that is regulated by the federal government under some statute is nearly absolutely prohibited, but that exceptions (incidental takes) can be made for fish and wildlife on the same property. Such an interpretation is inconsistent with the ESA's greater protections for fish and wildlife.”

In addition, the Judge rejected the Plaintiffs claims of wrongdoing by the California wildlife personnel, finding no evidence of a knowing violation of state law.

Full post as published by ESA Blawg on March 10, 2008 (boomark / email).